Elliott v. West, 13144

• Decision Date: 09 February 1984
• Docket Number: No. 13144,13144
• Parties: Curtis L. ELLIOTT and Delane G. Elliott, Appellants, v. Ernest WEST and Maxine West, Respondents.
• Court: Missouri Court of Appeals

Page 683

665 S.W.2d 683

Curtis L. ELLIOTT and Delane G. Elliott, Appellants, v. Ernest WEST and Maxine West, Respondents.

No. 13144.

Missouri Court of Appeals,

Southern District,

Division Three.

Feb. 9, 1984.

Motion for Rehearing or Transfer Denied

Feb. 22, 1984.

Joseph S. Sanchez, Festus, for appellants.

Karen J. Miller, Hyde, Purcell, Wilhoit, Spain, Edmundson & Merrell, Poplar Bluff, for respondents.

CROW, Presiding Judge.

This is a dispute over a three-sided 2.96 acre parcel of land ("the triangle"). The triangle lies in, and is part of, a 42.6 acre tract designated as lot 8. Lot 8 lies in an unincorporated area of Butler County.

Appellants are the record owners of lot 8. They sued respondents to quiet title to the triangle, alleging that respondents claimed an interest therein adverse to appellants.

Respondents counterclaimed, asserting title to the triangle by adverse possession. In a second count, respondents sought damages from appellants for trespassing on the triangle.

Appellants later added a count of their own against respondents for trespass.

The cause was tried without a jury. The trial court ruled for respondents and against appellants on both of appellants' counts. The trial court ruled for respondents on their claim of ownership, but denied respondents' count for trespass.

On appeal, appellants contend the portion of the judgment declaring that respondents own the triangle should be reversed because the evidence was insufficient to support respondents' claim of ownership by adverse possession. Appellants assign no error regarding the denial of their count for trespass. Respondents did not appeal from the denial of their count for trespass.

To comprehend the evidence, it is necessary to visualize lot 8 and the triangle. The northern and southern boundaries of lot 8 are essentially straight, and run east-west, parallel to each other. The eastern boundary of lot 8 is also straight, and runs north-south, perpendicular to the northern and southern boundaries.

The triangle lies at the west end of lot 8. The western side of the triangle is the western boundary of lot 8. Beginning at the northwest corner of lot 8, the western boundary runs in a generally southeast direction, and is slightly convex. A railroad owns the land west of the western boundary.

The northern side of the triangle is a segment of the northern boundary of lot 8. That segment separates lot 8 from a tract identified as lot 4, which lies north of, and abuts, lot 8.

The northwest corner of lot 8 and the southwest corner of lot 4 are the same point. Lot 4 does not extend as far to the east as lot 8, that is, the southeast corner of lot 4 lies west of the northeast corner of lot 8, both points falling on the same east-west line. Another tract (lot 5), not in dispute here, lies immediately east of lot 4 and abuts the north side of lot 8 east of the southeast corner of lot 4.

The eastern side of the triangle is a line that begins at the southeast corner of lot 4 and runs south 593 feet across lot 8 to the convex boundary between lot 8 and the railroad land.

The triangle, then, has these sides: (1) a straight north side (the boundary between lots 4 and 8), (2) a straight east side which begins at the east end of the north side (that point being the southeast corner of lot 4) and runs south across lot 8 to the railroad boundary, and (3) a convex west side which runs along the railroad boundary from the south end of the east side of the triangle to the west end of the north side of the triangle (the latter point being the northwest corner of lot 8). The west side of the triangle is the longest. By reference to the scale on a survey map, the west side appears to be approximately 681 feet in length, and the north side approximately 342 feet. The east side of the triangle, as previously noted, measures 593 feet.

Farrington Elliott, who died in 1979 while this cause was pending, testified by deposition that he began living on lot 8, east of the triangle, in 1903. About 1917, he acquired ownership of lot 8 from his father. In 1971, Farrington deeded lot 8 to his son, appellant Curtis L. Elliott, subject to a life estate which Farrington reserved for himself. Curtis then deeded lot 8 to himself and his wife, appellant Delane G. Elliott, subject to Farrington's life estate.

Farrington Elliott lived on lot 8 continuously from 1903 until his death, except for a time during World War II when he worked in defense plants. Curtis Elliott lived on lot 8 from his birth in 1934 until his marriage in 1956. After marrying, Curtis returned regularly to visit his father.

Evidence regarding title to lot 4 showed that in 1936 it was owned by four Magill brothers, having been "left" to them by their father. The brothers continued to own lot 4 until 1960 when three of them, and their respective wives, deeded their interests to the fourth brother, John, and John's wife, Opal. John died the next year, 1961.

In 1971, lot 4 was sold for delinquent taxes by the collector at public auction. Respondents purchased lot 4 at the tax sale, and also obtained a warranty deed from Opal Magill. Respondent Ernest West explained that respondents had agreed earlier to buy lot 4 from Opal, but decided to purchase at the tax sale "to improve the title." According to Ernest, there were "flaws" in the Magill estate.

When respondents bought lot 4 in 1971, there was a fence ("the north-south fence") along the entire east side of the triangle, separating the triangle from the rest of lot 8. According to Farrington Elliott, the north-south fence was built in 1905 and rebuilt about 1910. It remained in place until 1978 when, according to Farrington, it "rotted down."

Ernest West testified he first became familiar with the triangle in 1951 when he bought 40 acres in lot 5. According to Ernest, he lived on that 40 acres until 1959, and during that period the north-south fence was intact. Ernest recalled seeing John and Opal Magill and Farrington Elliott maintaining and repairing the north-south fence.

Ernest explained that during those years (1951-1959) he believed the "Magill estate" owned the triangle because he saw John and Opal Magill "running cattle" on the triangle "every fall."

Ernest related that he moved in 1959, but returned to the triangle occasionally thereafter for "recreational purposes," obtaining permission to go on the triangle from John and Opal.

Ernest testified that when he bought lot 4 in 1971, Opal told him that the Magill property included the triangle, and that the north-south fence was the east boundary. Ernest explained, "I thought I purchased what was under the fence boundaries."

In that regard, the west side of the triangle (the side abutting the railroad land) was, like the east side of the triangle, marked by a fence when respondents bought lot 4. The fence on the west side of the triangle ("the railroad fence") was, according to Farrington Elliott, built by the railroad in 1912. The railroad fence was still in place in 1978 when Ernest West had the triangle surveyed.

All witnesses agreed that at the time of the tax sale, there was no fence along the north side of the triangle separating the triangle from lot 4. Thus, when respondents acquired lot 4, the triangle was (a) separated on the east from the remainder of lot 8 by the north-south fence, which had been there some 66 years, (b) separated on the west from the railroad land by the railroad fence, which had been there some 59 years, and (c) open to lot 4 on the north.

The triangle remained open to lot 4 on the north until October, 1978. At that time, Farrington and Curtis Elliott, aided by Curtis' wife Delane, built a barbed wire fence ("the 1978 fence") starting at the southeast corner of lot 4 and running westerly across lot 4 at an angle a few degrees north of the line between lots 4 and 8. The 1978 fence terminated on the west at the railroad fence. Because of the angle at which the 1978 fence was built, its length (374 feet) was greater than the length of the north side of the triangle (approximately 342 feet).

In November, 1978, Ernest West cut the 1978 fence in several places, but allowed the steel fence posts to remain in place.

There was a conflict in the evidence as to whether there had ever been a fence along the north side of the triangle prior to the 1978 fence. Farrington Elliott recalled that in 1929 a pipeline was put in along the southern part of lot 4, running "in an east-west direction," and that the pipeline company put up a barbed wire fence on lot 8 "maybe twenty or thirty feet" south of the boundary between lots 4 and 8. Farrington explained that the pipeline company left a gap in the fence "for a road down to the beer joint and it never was closed." According to Farrington, neither the pipeline company nor anyone else ever maintained that fence.

Curtis Elliott recalled a barbed wire fence along the pipeline, but described its location differently than Farrington. According to Curtis, the fence began at the southeast corner of lot 4 and ran northwest across lot 4, crossing the pipeline before reaching the railroad boundary. Curtis testified that remnants of the pipeline fence were still present in 1971, but were removed after respondents bought lot 4.

A man who lived on lot 5 from 1936 until 1939 recalled an "old barbed wire fence" that ran across the south part of lot 4 and crossed the pipeline east of the railroad fence.

Ernest West testified that prior to the 1978 fence, there had never been a fence along the pipeline since he became familiar with the property in 1951. Opal Magill, who became familiar with lot 4 in 1935, recalled no east-west fence anywhere across lot 4 or the triangle. The surveyor who mapped the property in 1978 saw no remnants of an older fence on the south part of lot 4. Additionally, a witness who hunted on the triangle each year from 1953 to 1980 saw no remnants of an old fence in that area.

Before detailing the acts of...